The Ministry of Infrastructure and the Environment is considering the opinion that LTO/POV have submitted to the publication of the 21st tranche of the Crisis and Recovery Act† Are the consequences of this new part of the law to limit 'nuisance' by livestock farms just as severe as the Nitrogen Emergency Act?
Lambert Polinder, specialist of the Exlan advisory service of the Agrifirm cooperative, gives his opinion on the interpretation of the bill, which was published in the Government Gazette on 7 February.
Can this legislation be reversed?
“The Ministry of Infrastructure and the Environment has yet to respond to the view submitted by LTO/POV. It depends on the argumentation to what extent the objections are listened to. I don't know when there should be a response from the ministry at the latest. But this legislation has the character of emergency legislation. The government believes it should be done quickly. However, the restrictions imposed by the corona crisis stand in the way of a careful process to enact such sweeping legislation. Informing supporters about this legislation is only possible to a limited extent. I advise the government to park this legislation, as long as the corona crisis takes all the time."
The concept of experimental space is used. How far does this understanding extend?
“The legal text only limits it to the provinces of Gelderland, Noord-Brabant and Limburg. In practice, it is probably the same as with the Livestock Farming Odor Nuisance Act. In the agricultural municipalities where nuisance does not play a major role, the rules are interpreted flexibly. In regions where a lot of nuisance is experienced, the interpretation of the rules is much stricter. I agree with LTO/POV that by definition the room for experimentation cannot last longer than a few years. Not until 2031, as it is now described in the legislative text proposal.”
The proposed legislative text makes it possible to revoke permits. But those are acquired rights, right?
“It has always worked that way in the past. That this legal certainty is being affected explains part of the emotion among farmers. But I'm not surprised it happens. It fits in with a trend that has already started with the entry into force of the current Odor Nuisance and Livestock Farming Act. The licensed odor nuisance can be affected in overloaded situations. Overburdened companies are allowed to expand. But only half of the licensed odor space that causes the overload may be used. The other half expires. The introduction of the Environment and Planning Act also fits in with this trend. Its entry into force has, however, been postponed due to the corona crisis. Once acquired rights no longer always automatically turn out to be inviolable rights. This does not only apply to agricultural companies, but society-wide. The municipal government determines what it considers good environmental quality. Whether this is the result of nuisance caused by stench, particulate matter and ammonia or other economic activities that have nothing to do with the agricultural sector. The Environment Act shifts responsibilities even more to the municipalities and provinces, because the quality of the environment is determined regionally and cannot be measured from The Hague.”
If a license is revoked, the farmer can object. But what if citizens object on the basis of this new legal text?
“Then citizens would have to object to a refusal by the municipality to use these rules. Whether or not to use the rules is a competence of the municipality and not an obligation. Normally, the judge is not so quick to sit in the chair of politics. The chance that the court will determine that a municipality must use this power, therefore, does not seem very great to me. But it is not for nothing that the 21st tranche of the Crisis and Recovery legislation focuses on limiting emissions from livestock farming. There is a good chance that this new legal option will be used seriously. Certainly also by the environmental services of municipalities, which usually keep a close eye on these kinds of matters.”
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